The opinion of the court was delivered by: WEINFELD
The petitioner, indicted in the Orange County Court, State of New York, for robbery in the first degree and grand larceny in the third degree, pled guilty to the lesser offense of robbery in the second degree in full satisfaction of the indictment charges. He was sentenced as a second felony offender and is now serving a term of seven and one half to fifteen years imprisonment. Upon appeal the judgment of conviction was affirmed.
Thereafter leave to appeal to the Court of Appeals was denied.
Petitioner now seeks his release and the vacatur of the judgment of conviction by way of a federal writ of habeas corpus upon a claim that his plea was entered in violation of his federally protected right to due process of law under the Fourteenth Amendment. He alleges that his guilty plea was involuntary because it was without factual basis and he had not been informed of the essential elements of the offense.
The guilty plea was entered immediately before the case was called for trial and when the State announced it was ready to proceed. The judge emphasized petitioner's right to a jury trial and also informed him that if he did plead to the lesser offense, because of a prior conviction, he would be subject to an increased penalty and that the sentence could be "as much as seven and one-half to fifteen years." Petitioner acknowledged that his plea was entered freely, voluntarily and after consultation with his counsel. Thereupon the Court, to establish the factual basis for the plea, asked: "Do you admit that on or about March 15th of this year that you forcefully stole from an individual in the Holiday Inn, the Town of Wallkill, a certain sum of money," to which petitioner responded in the affirmative. The Court continued: "Now, bearing in mind everything that I have said to you, do you plead guilty to the crime of robbery in the second degree?" The defendant affirmed, "I do, your honor." Thereafter, at the sentencing, the Court summarized the charges against petitioner "this was a holdup in the nighttime, where you wore a mask, had a knife and held up the night manager . . . this was a violent crime . . . . You were found with the cash and you were found with a similar type of knife."
Petitioner's contention here centers about N.Y.Penal.Law § 160.10 (McKinney 1975), which provides:
Robbery in the second degree
A person is guilty of robbery in the second degree when he forcibly steals property and when:
1. He is aided by another person actually present; or
2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.
Petitioner's position is that there was no factual basis to establish the essential elements of second degree robbery under New York law and that his guilty plea was involuntary as a matter of law and thus constitutionally void.
As to the circumstances surrounding the entry of the plea, the attorney who represented petitioner has submitted a detailed affidavit which in substance states that prior to the change of plea from not guilty to guilty he had "an indepth discussion" with his client concerning the consequences of the change of plea from not guilty to guilty and that he indicated
to the defendant that our office was prepared to vigorously defend the action in the event he wished to go to trial. The defendant had a prior criminal record and he was informed that he could receive increased punishment as a result of being a multi-felony offender. I further explained to the defendant that the original charge of robbery in the first degree was defined by the Penal Law as forcibly stealing property and when in the course of the commission of a crime he either causes serious physical injury to another person not participating in the crime or is armed with a deadly weapon or uses or threatens immediate use of a dangerous instrument or displays what appears to be a type of firearm. I indicated to the defendant that robbery in the second degree is committed when one forcibly steals property while aided by another person actually present or while in the course of the commission of a crime or fleeing from the crime he or another participant causes physical injury to another not involved in the commission of the crime or displays what appears to be a firearm. The defendant indicated that he understood and that he was prepared to take his chances on entering a plea of guilty since he had in fact committed the crime with which he was charged. Defendant indicated that he had used a knife to obtain the money he had gotten from the night clerk at the place of the commission of the crime.
These factual allegations have not been challenged by petitioner. Thus the claim that the plea was "involuntary" presents a ...